TED Entertainment Inc. v. Alexandra Marwa Saber, Morgan Kamal Majed, and Kasey Caviness, California 2:25-cv-5564, 2:25-cv-5565,Missouri 4:25-cv-459 - Ethan Klein Suing three women and 10 redditors for Copyright Infringement.

[Kiwi Farms Gold Member]

Ethan will go all the way to the supreme court to have them overturn the retarded decision.

He has the chance to do something really fucking funny. Even watching an appellate court sort through this would be entertaining, much less SCOTUS.

I’m not sure if this group of retards realized what they were dealing with. Lex Jewthor will be raking them through the coals one way or another. From H3TV #73:

 

[Maraschino]

Do we know if this is accurate? If this is fake she basically auto-loses right

I doubt that her "commentary" was actually the kind that results in it being "transformative", knowing that Denims (from what I can remember) starts every fucking stream with copyright infringement, by playing 60+ minutes worth of videos from others without even being on the fucking screen and saying nothing.

But let's take into account that, along with what Gobermental Supervisor mentions in his post (the content of which addresses pillars 1 and 3 below) there are four pillars of fair use:

1. The purpose and character of your use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion taken, and
4. The effect of the use upon the potential market.

What was her purpose and character of her use? To make money off of Klein's video. Did she actually add anything? Not that I can remember. Repeatedly saying "He's wrong" means fuck and all and calling it transformative is not enough. You need to say WHY, and if your justification is "Because it's Klein" or "Because Israel bad" is not a good enough reason. Especially when there's substantial sections when you're not saying anything, if you're even there to begin with. More simply put, she did not create anything new. "Watch parties" ARE NOT fair use.

2. The copyrighted work was a critique of Hasan. It was overall still an opinion piece, compared to something like a biography or a standard collection of information. There's an interest in dissemination of facts and knowledge. You have more leeway to take from something like a biography, not from something like a video essay that's critical of an individual.

3. She watched the entire fucking thing. And she did it immediately after it had released. For this pillar, the more you take the worse it is for you. It literally cannot be worse than "the entire fucking thing". It's still possible to have fair use despite watching the whole thing, but you better be on point for pillar 1.

4. Let's ask a few simple questions. Are you creating a replacement? Are you trying to deprive the original copyright owner of income? If the answer is yes, you're fucked. Wanna know what's even worse? Literally saying you were watching the entire video as it released for the purpose of making sure Klein couldn't make money. Which is what the people who Klein sued did, and why he sued them specifically.

Now all that has been said, what is my actual point? Fair use isn't just "did you talk a lot". It's "did you add substantial commentary in a way that matters", and it's just one pillar of four.

You need ALL FOUR for fair use.

The fact she literally said she was watching the whole thing to deprive Klein of money could singlehandedly be enough to sink her case, because it directly violates at least one of the pillars (#4), and arguably at least two of them (#3 and #4). It's effectively admitting to the crime. It doesn't matter if she has a shit eating smug grin the entire time. She fucked up, and Twitch (though not getting sued) fucked up for not shutting this shit down immediately and letting the retards run the asylum.

 

[Gobermental Supervisor]

The fact she literally said she was watching the whole thing to deprive Klein of money could singlehandedly be enough to sink her case, because it directly violates at least one of the pillars (#4), and arguably at least two of them (#3 and #4). It's effectively admitting to the crime. It doesn't matter if she has a shit eating smug grin the entire time. She fucked up, and Twitch (though not getting sued) fucked up for not shutting this shit down immediately and letting the retards run the asylum.

I really want to see Denims on the stand during a trial. (Or rather, read the transcript since there will be no cameras in federal court)

"Miss Saber, could you tell the jury for how many of the 7839 copyright protected works you used on your channel you have requested permission from the original creators, or purchased a license for broadcasting from the rights holders?"

<blank stare>

"I rest my case your honor."

EDIT: Reminder. The hearing regarding the Reddit/Discord subpoena is scheduled for tomorrow (April 20th)

 

[Terrifik]

Make sure the mention they butt fucked ethan ralph with a cross country warrent.
Do not test them you will get hit.
Wait or ask someone pay the fee for transcript.(this is major point on copyright front

EDIT: Reminder. The hearing regarding the Reddit/Discord subpoena is scheduled for tomorrow (April 20th)

Remember just listen don't do anything . ( write notes on your thoughts during the hearing. )
Unless your lawyer willing to pay the transcript fee.
You will get hit warranted by the judge.

 

[MrMM]

Update!
Motion Hearing: Motion to Quash Subpoena
Date: April 20th 2026, 9:30am PST (That is 12:30 EST or 18:30 CEST)
Access: https://www.cand.uscourts.gov/sk

DISCLAIMER: Photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

If you attend, do NOT fuck with federal court.

View attachment 8829265

I actually think we should ban users who record stuff like this.

Remember just listen don't do anything . ( write notes on your thoughts during the hearing. )
Unless your lawyer willing to pay the transcript fee.
You will get hit warranted by the judge.

Yes, important reminder for everyone. Don't fuck with a federal judge and record anything tomorrow. Just take your notes and summarize any thoughts after.

Even the idea of live-commentary is ambiguous. Some federal judges have given the nod to live-tweets from journalists, while others have not. And even still, do not expect the same treatment for the Farms as "journalists" would get.

Especially after the LFJ related subpoenas, this is a matter of "dont be stupid, stupid", so avoid own-goaling on yourself.

 

[3-2-1836]

Hitler would be proud of the semite on semite violence we're going to witness on his birthday

 

[Potentially Criminal]

We got actual movement in the Subpoena case.
The judge wrote down a list of questions, which the parties are expected to prepare for verbal arguments during the hearing on the 20th.
Written answers will NOT be accepted.

Question 1:

There's no way the ISP would have that data. It's through Reddit and the ISP isn't going to go after Reddit.

Question 2:

That's a good question they probably don't have an answer for, I would presume. I think it's the most relevant case law and that Reddit was served with DMCA notices in the underlying case.

The In re Twitter Subpoenas case mentions that the DMCA and Rule 45 don't preclude each other.

Question 3:

No, because the DMCA subpoena wouldnt be effective at securing that info from the ISP.

Question 4:

It makes sense Ethan has to show that Denims infringed and the jannies enabled and fostered it

Question 5:

The 2020 case was unique in that the Jehovah's Witnesses weren't even suing under DMCA yet and were seeking a subpoena without having filed a suit yet.

Ultimately the redditor posted one page of a JW advertisement and chart which wasn't found to be commercial in nature, nor meant to usurp JW's copyright.

It also hurt JW that they pretty much conceded the facts that allowed the court to find fair use. Their argument was that as an affirmative defense, the Redditor wasnt at the stage where such a defense could be asserted.

Question 6:

It can use the Highfields test and this still goes poorly for the mods.

Question 7:

If this was a copyright case, she would be within her rights to make a fair use determination, sua sponte. Also the facts are undisputed.

The court could make a finding but this will be very problematic: the party that actually has the right to assert fair use isn't a party here, it's based off of scant briefing, and outside of the underlying case so it's not binding on either party if a ruling gets made.

I dont think the court is honestly going to grant this motion to Quash but it's asking for the sake of protecting the record because this will likely be appealed by either side.

 

[Terrifik]

It begins. Begins .
No anything wait for transcript.
*Its at capacity. *

 

[Gobermental Supervisor]

Another case is called first.

A pro se sperge who cannot figure out how to enable his camera.

And the judge has a camera that is recording at 1 pictures per minute.

 

[MrMM]

It begins. Begins .
No anything wait for transcript.

Technically they're calling 3:25-cv-09083-SK - Andariese v. Block, Inc. et al first in this hour block. But yes.

 

[Gobermental Supervisor]

The case was just called.
The counsel for the Jannies has her pronouns in the Zoom name. Good start.

 

[Gobermental Supervisor]

My self-written notes, uncorrected.
No recording, no AI use. Sorry for the spelling.

Spoiler: Notes. But I recommend the notes below. Much more informative.

Question 1: Plaintiff did not request a DMCA subpoena, and if not why. No take down requested, so no subpoena possible.

Question 2: Why were DMCA rules discussed when it is a different case.

Rom Bar-Nissim (TEI): Misinterpretation of the legal standard. Both applies because one imports the other.

Leah Vulic (Jannies): We agree. It applies equally for the reason he stated and blablablabla further explanations.

Judge disagrees, explains that she thinks that the standard for establishing if the plaintiff has made a showing they have case differs based on what rule the subpoena is thought.

Question 3: -

Question 4:
Rom Bar-Nissim (TEI): Is the issue here whether Denims made fair use or not?
Judge: Do I have to just analyze if TEI made a Prima Facie case Denims and the Doe Defendants, or look at further evidence?
Rom Bar-Nissimg (TEI): The fair use issue seems a bit in flux. It seems the courts employ a different level of scrutiny depending on the speech at issue. Only where a showing of fair use is achieved a motion to quash is really granted. Thinks the prima fascie standard should be applied.
Argues that courts have ruled that factual disputes regarding fair use cannot be argued with a party hiding behind anonymity.

Leah Vulic (Jannies): Evidentiary standard should be required for each element of the claim. Plaintiff must prove Denims was not fair use, and Jannies was not fair use. So intent and knowledge need to be proven.

Judge: How can they do any of that if they do not know who the person is?

Vulic: Just use the basis for the copyright allegation and apply the standard. They have not shown active steps of inducements.



Rom Bar-Nissim: There were a few things false. They knew the works were shown without authorization, by writing it explicitly out that Denims was going to stream it. They knew she was live streaming the content. There is no possibility of fair use when the person streaming the content had not event seen the content before. We tried to resolve as many disputed issues as possible. The burden for proving fair use is always on the defendant. If you are advertising and promoting infringement you contribute to it.

Skip Question 5

Question 6

Highfields test or DMCA standard?

Vulic: Snark subreddit was essential for free speech discussion. It was not a harassment platform. The subreddit attracted users who disagreed with his views. Ethan Klein is a public figure.

Judge: Which would be fine if they had just discussed things. But this is copyright. And from what I have seen the Doe's were promoting the infringement. The interplay between infringement, contributory infringement and 1A is what I am concerned about. But the way they exercised their 1A is at issue here.

Vulic: Megathreads exists everywhere. Megathreads exist to centralize information. They did not agitate for people to use the entire Content Nuke on Denim's streams. Glazes Denims and how her use is totally fair use. Reaction content is very popular, and because of that they shared the information that Denim's was streaming. They also included a link to the original video. They totally did not tell people to watch it with Denims instead of the original.


Question 7: Can the judge make a determination on fair use?

Vulic: Yes the court can. Two determination can be made, Denim's fair use and Doe's fair use. The structure of the film can be taken from the film itself, and it is undisputed that Denims watched it, how often she paused and talked. The things in dispute are the legal characterizations.

Rom Bar-Nissim: The court has the two works and the court can make a fair use determination based on the evidence.

Leah Vucic also mentioned that there likely is a megathread somewhere about this hearing.
Hello Leah, thanks for reading!

I believe the judge leans towards denying the motion.
It seems pretty evident that people should not be able to hide behind anonymity to avoid a legitimate legal dispute.

EDIT: I also find it entertaining that they agree the judge can make a legal finding if fair use applies or not based on the submitted evidence.
As a reminder, among the submitted evidence are screenshots from this thread, because the Reddit Jannies are really upset about people's 1A right when they are being made fun of.

 

[MrMM]

Just now submitted. They went for roughly 28 minutes.

Largely unremarkable in my opinion.

I was left a little unimpressed with Rom Bar-Nissim, as there was one moment where Leah Vulic misrepresented H3's position (said that for the Mods contributory infringement that H3 was only alleging that the Mods directed Denims to infringe -- not that the Mods directed the users of the subreddit to infringe) and Rom was immediately given a chance to respond by the judge and... didn't correct the issue at all. He went off on a tangent about which party should bear the burden of proof and about how the parties aligned in an initial meet and confer that it was defendants burden???

Not only was he given a layup to point out to the judge that Vulic was affirmatively misrepresenting the case, he totally forgot to address it at all initially. And the judge had to remind him of Leah's statement for him to come back to address.

Some statements that stood out from the judge:

• said "based on what she as seen" doe defendants were urging people to view denims stream
• said "they encouraged to watch a full length livestream of the copyrighted material"

My first impression is that she doesn't seem all that interested in getting too into the weeds on the fair use arguments, and that the fact that it was the full video is at least persuasive to her analysis (it should be).

Leah went on at length describing how megathreads at reddit work, but I don't think the judge is going to find that all that relevant -- just because something is common practice doesn't mean it isn't infringement. Hell anyone who goes on anime/manga subreddits know those no longer allow direct links to translated chapters (I'm sure the judge doesn't know this), so like obviously some of reddit has caught the memo that they can't just do what they've always done and avoid repercussions.

Also Rom fucked up the exhibits in the original filing and will have to refile Exhibit K or something to the complaint. Judge told him "please do".

Spoiler: Extended Notes - ignore typos or mistakes on which statute/case was referenced

Zoom starts at 12:30pm -- not the first case called

Attendance:
Reddit Mods: Leah Vulic
Teddy Fresh: Rom Bar-Nissim
Brenda is the Clerk

Question 1: This question is directed to Ted Entertainment, Inc. (hereinafter “TEI”): The Digital Millennium Copyright Act (“DMCA”) provides a procedure through which copyright holders may subpoena internet service providers for information identifying an alleged copyright infringer. See 17 U.S.C. § 512(h). Did TEI issue the subpoenas pursuant to the DMCA? Why or why not?

• TF: no takedown at issue, not a 513h proceeding

Question 2: This question is directed to both parties: If the subpoena was not issued pursuant to the DMCA, why did the parties discuss case law applying the DMCA legal standard instead of Federal Rule of Civil Procedure 45?

• TF attorney smiles
• TF: says 512(h) imports r45 can be found 512h6
  • Shall apply to the “greatest extent possible”
  • Directs to signature team management vs automatic
• RM: agree, caselaw applies equally. Same first amendment framework
  • Principal difference is that DMCA they are issued ministerial by clerk of court, where r45 party is going to court and seeking authorization, typically before r26f conference
  • Typically plaintiff goes to court, and shows why it has a basis for unmasking subpoena
    • Since the other parties stipulated to subpoena, there was no scrutiny in first instance
• Judge: Doesn’t understand dmca. Thinks it is different. Says DMCA framework concerned her.
  • Wouldnt use highfields, would use other case in district
• RM: interjects saying cases for DMCA that use highfield

Question 3: This question is directed to both parties: Did the creation of the ability to use a DMCA subpoena to find an anonymous infringer negate a party’s ability to seek a Rule 45 subpoena for the same information?

• mooted

Question 4: This question is directed to both parties: The parties appear to be arguing the merits of Denims’ alleged copyright infringement and the Doe Defendants’ alleged contributory copyright infringement. Why does the Court not only have to find that TEI made a prima facie case for copyright infringement and contributory copyright infringement to decide the Doe Defendants’ motion to quash? The parties should be prepared to support their positions with relevant case law.

• TF: says he was confused, is the concern that there was not fair use.
  • Is the issue whether denims made fair use or not
• Judge: do i have to make a finding of contributory infringement to agree here. Prima facia case
• TF: NDcal says whenever there is an assertion of 1am protection, anonymity, etc.. thinks thats been imported into the first prong.
  • In ndcal the distinction is highfields vs sony test
    • Sony is prima facia allegations
    • Highfields looks from evidentiary standard
  • Seems ndcal deploys different level of scrutiny depending on speech at issue
    • Barns v youtube, passing assertion of fair use, but more issue if disclosure impact first amendment rights.
    • Generally only when there’s a showing of fair use that has quash granted
  • Second circuit case deploying
    • Arista records v Doe 3, Second Circuit 2010
    • Said factors 2-4 clearly weighed against, but factor 1 there was an allegation dispute of fair use. Factor 1 raised questions of credibility and plausibility that could not be addressed with a shield of anonymity
    • Says if there are questions of fair use, that is insufficient to defeat prima facia showing
• RM: Does believe there must be a prima facia evidentiary standard for direct and contributory
  • Direct infringement is an element of contributory
  • In re dmca v twitter inc (“moneybags” case)
    • Held that to obtain a subpoena that the plaintiff must come forward showing it is not fair use
    • Says TF must show it was denims infringed, not fair use, does infringed, not fair use, and knowledge
    • Direct is strict liability, not contributory
• J: says its hard to make a prima facia case without knowing who
• RM: says reddit threads are not in dispute
  • Haven’t shown the does knew of infringement, haven’t shown active steps of inducement
• J: says active steps were encouraging
• RM: says TF is not alleging mods encouraged others to infringe, says TF is alleging mods encouraged denims to infringe
• TF: corrects, facts. Says cant make subjective or objectively
  • Didnt’ affirmatively rebut the RM characterization of contrib
  • Wanted to correct statement by RM, the burden is that defendants should show fair use. Twitter is anomaly
• J: asks about contributory
• TF: says it isn’t the case induced denims to infringe. Did it by advertising.

Question 5: This question is directed to both parties: How are the facts of this distinguishable from those in In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875 (N.D. Cal. 2020) and Barnes v. YouTube, Inc., No. 25-CV-05901-VKD, 2026 WL 412470 (N.D. Cal. Feb. 13, 2026)?

• skiipped

Question 6: This question is directed to both parties: If the alleged infringer, here the Doe Defendants, allegedly infringed copyrights but also commented without copyright infringement, should the Court then apply the Highfields test as Judge Chhabria did in In re DMCA § 512(h) Subpoena to Twitter, Inc., 608 F. Supp. 3d 868 (N.D. Cal. 2022)?

• RM: says moneybags case, discovery requests to unmask anon speakers, must consider 1st amendment rights
  • Here, the reddit was a community for critical commentary. H3 is public figure
  • Not harassment forum
  • Subreddit attracted people who disagreed
• J: says there’s an issue regarding livestreaming the whole show start to finish
  • Says doe defendants were urging “based on what she has seen” for people to view the denims stream
  • The way they did it, can separate comments and say thats completely first amendment. The way they did encouraged to watch a full length livestream of the copyrighted material.
• RM: “let me explain something about reddit”
  • Can post threads, and people can comment
  • Megathreads that moderators can use (common)
  • Mods say there’s this topic, we do not want ten threads, centralize discussion by creating the megathreads
  • “If you watch denims stream it is impossible to get the original content”
  • “If you wanted to watch content nuke on its own you would not be able to watch on Denims stream”
  • Says does are familiar with reaction content
  • Mods know that reaction content streamers will include reactions
  • Third megathread included the original youtube link itself, as a hyperlink
  • Was directing users to various discussion points, trying to centralize discussion
• J: understood (her only comment)

Question 7: Are the facts undisputed that I can make a determination of fair use?

• RM: they think court can make a determination on FU
  • Denims and does alleged infringement
  • Content and timing
  • Structure of film, court can get from complaint
  • Court can watch stream to see what has been done
  • Says in dispute are the legal characterizatios of the facts
• TF: says he submitted exhibit K was wrong, uploaded wrong file
  • Updates about other cases, for judgment on pleadings on the Nuke episode
  • Parties stipulated to a corrected exhibit K
  • Says he will submit corrected exhibit K
  • Says with that in mind, have all the works at issue, can make a fair use determination

Edit to avoid doublepost:

EDIT: I also find it entertaining that they agree the judge can make a legal finding if fair use applies or not based on the submitted evidence.
As a reminder, among the submitted evidence are screenshots from this thread, because the Reddit Jannies are really upset about people's 1A right when they are being made fun of.

Hahaha right? The way they talk out of both sides of their mouths is baffling. "our criticism is good and 1A protected" and "Kiwi Farms criticism is harassment and evil and should not be tolerated"

 

[Gobermental Supervisor]

I hate you for actually understanding the law at hand and writing much better notes.

Much appreciated!

 

[Qonas]

Rom was immediately given a chance to respond by the judge and... didn't correct the issue at all.

FFS if another lolcow escapes consequences because of shitty lawyering...

 

[MrMM]

I hate you for actually understanding the law at hand and writing much better notes.

Much appreciated!

Hahaha I mean, they're pretty rough notes (and my dumbass misspells prima facie because basically all lawyers pronounce it wrong and I only realize it after posting).

Hopefully someone pays for the transcript, however I don't think there's that much incentive to do so (unless H3 wants to make content out of this, in which case it might make sense, since he couldn't record the hearing) as I don't think there were any major concessions by either party that would benefit to reference for a future appeal or something.

I agree the judge is leaning towards dismissing the motion to quash. Especially when the judge, during question 4, was remarking on how it would be very hard (she may have said "impossible", but I wasn't 100% sure as I was slightly behind in recording my notes and didn't want to overstate it in my notes) to make a prima facie case without knowing the identities (specifically as to the Does' knowledge of infringing content).

 

[Gobermental Supervisor]

I agree the judge is leaning towards dismissing the motion to quash. Especially when the judge, during question 4, was remarking on how it would be very hard (she may have said "impossible", but I wasn't 100% sure as I was slightly behind in recording my notes and didn't want to overstate it in my notes) to make a prima facie case without knowing the identities (specifically as to the Does' knowledge of infringing content).

She pretty much stated (paraphrased from memory): "How can they do that if they do not know the identities?"

And Miss Vucic could only divert by claiming that "they could use the usual methods and apply the standards" and some such nonsense.

I think the identity needs to be established to properly serve all parties, and also to be able to properly attribute specific comments to each party to be able to paint the whole picture. As far as we know the entire subreddit could be run by Taylor Lorenz with multiple different moderators accounts connecting through different VPNs.

I think some of the Does will be dismissed with prejudice, because they were only on a single account and their statements were less egregious, and others will be very fucked because they were on multiple accounts at the same time.

 

[Terrifik]

https://www.reddit.com/r/LeftoversH3/comments/1sqvqj7/comment/ohanwvu/?

Snark
They know it's bad o7
https://archive.ph/y3Pdj - to late of archive

 

[anliteralidiot]

https://www.reddit.com/r/LeftoversH3/comments/1sqvqj7/comment/ohanwvu/?

Snark
They know it's bad o7

what did it say lol

 

[MrMM]

She pretty much stated (paraphrased from memory): "How can they do that if they do not know the identities?"

Oh, yes, this sound right. Basically an implication that it was impossible -- but didn't say impossible so I didn't write it.

And Miss Vucic could only divert by claiming that "they could use the usual methods and apply the standards" and some such nonsense.

I think Leah sort of has a point here in that the judge is wrong, you don't necessarily have to unmask the Mods here to make a prima facie case showing. But she's wrong because the facts are sufficient as they stand to find a prima facie case. Prima facie is "on its face" -- it's not some super elevated standard that the Mods are trying to make it into. So essentially, the judge is wrong because H3 has already done enough.

Contributory infringement for copyrights requires knowledge: (1) “actual knowledge of specific acts of infringement”; (2) “willful blindness of specific facts”; or (3) there is “reason to know” of specific acts of infringement.

To be clear, the Mods only are addressing actual knowledge of specific acts, and ignoring other standards (willful blindness/"reason to know") and throwing a lot of smoke. Leah wants her cake (you can't make a prima facie case of actual knowledge here because you cant know who they are and what they know) and to eat it too (you cant know who they are because you haven't made a prima facie case).

But H3 has done more than enough for a prima facie case. In his opposition pages 19-21 addresses it. And the Jan 30, 2025 Mod post that says "Hey everyone, we’ve seen a lot of comments about wanting to watch the nuke without showing support for H3" is plenty sufficient for a prima facie case of knowledge of infringement here.

I think the identity needs to be established to properly serve all parties, and also to be able to properly attribute specific comments to each party to be able to paint the whole picture. As far as we know the entire subreddit could be run by Taylor Lorenz with multiple different moderators accounts connecting through different VPNs.

Service and the like is slightly different from the issues at hand. But I also agree, it is funny to me that there's a world we open up and the subpoenas are granted as it pertains to reddit/discord and VPNs make it insufficient to know who the Doe parties are. MEANWHILE the parties actual identities are known by the lawyer. I do find it funny that Reddit's jannies (general sense) aren't necessarily identities known to them, when they provide the bulk of the labor for reddit.

I think some of the Does will be dismissed with prejudice, because they were only on a single account and their statements were less egregious, and others will be very fucked because they were on multiple accounts at the same time.

I am not so sure. I don't think that gets resolved at this stage. That strikes more at the ultimate merits. Meanwhile right now we are just trying to identify who is who, so it can be pieced apart who did what at what time. There's totally a world where this motion to quash is denied, the Mods get unmasked, and then several Mods have the case dismissed against them for insufficient involvement. I just don't think that's resolvable at this stage.

It certainly is a weird world where we see basically the parties and the judge treating this as a merits resolution for a subpoena where really it's just a finding of a prima facie case.